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Monday, April 15, 2013

What is Aquinas’ theory of law?

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Thomas Aquinas (1225–74) was concerned with systematizing knowledge,
on the basis of Catholic doctrine, so that the cosmos might be understood as a
vast unit in which everything had a place and a meaning.Within this system of
knowledge, God’s plans for mankind occupied a special place, and the law was to
be comprehended as a part of those plans. Aquinas propounded a theory of law
based on his conception of ‘reason’; this resulted in a fourfold division of
law in which so called ‘natural law’ is of much significance. The answer given
below is based on the following skeleton plan:

Introduction – background of Aquinas – influence
of

Aristotelian thought – fourfold division of law –
problem

of morality – violation of the natural law and its

consequences – conclusion, stressing the work of
Aquinas

as a synthesiser of philosophy and religious
thought in his

interpretation of law.

St Thomas Aquinas occupies an important place in the history of the
development of natural law doctrine. He had studied as a Dominican monk under
Albertus Magnus, and, in later years, produced works of lasting significance in
which he effected a synthesis of the logic of Aristotle, the religious thought
of the early Christian Fathers, and some of the patterns of classical Roman
law. In his celebrated Summa Theologica (c 1266), he set out a fully systematized
approach to law which, even today, dominates the thinking of many Catholic
jurists, as evidenced by the growing Noe-Scholastic school of jurisprudence.
Law is to be understood as part of God’s plan for mankind – this is the belief
which is central to the concepts mentioned below.

It is important to remember the context within which Aquinas worked.
The authority of the Catholic Church was expanding, and those whose task it was
to explain doctrine were guided by a strict pattern of thought. Interpretation
of the Scriptures had produced two principles which were of direct relation to
attempts at explaining the nature of law. First, the principle of unity (based
on ‘one God, one Church’) was reflected in the wish for ‘one Church believing
in one law’. Secondly, the principle of supremacy of law, which was seen as an
aspect of the unity of the world, taught that all persons, including rulers,
were under the law’s dominion. Aquinas’ general approach to law was fashioned
with these principles in mind.

At this time, a study of the works of Aristotle was not always welcomed
by the dominant church hierarchy, which viewed his ‘scientific rationalism’ as
a potential threat to church dogma. Aquinas did not share this attitude. He was
deeply impressed by Aristotle’s emphasis on reason and the primacy of
intelligence. He made a deep study of Aristotle’s works, lectured publicly on
their significance, and was affected profoundly by their elucidation of the
part which could be played by reason in the understanding of phenomena such as
law. In the Summa Theological, Aquinas seeks to establish the framework of a systematized
‘science of theology’. He employs the highly formalized style of argument which
was common in his day (and which was to be found in the procedures of the civil
courts in those parts of Europe where the inquisitorial style of trial was
common). Questions are posed, sub-questions emerge and are answered, and
further argument leads to attempted refutation until an outline of proof and a
final enunciation of an answer to the original question appear. The exposition
of law associated with Aquinas is derived from his answers to Questions 90–97
in the Summa. Law is perceived always as God’s instrument for assisting man in
the lifelong process leading to the perfection of his nature.

Aquinas begins his examination and interpretation of law by considering
‘morality’. The very basis of moral obligation is to be discovered within man’s
nature. Built into his nature is a group of God-given ‘inclinations’. They
include self-preservation, propagation of the species and (reflecting man’s
rationality) an inclination towards a search for truth. Man is guided by a
simple and basic moral truth – to do well and to avoid evil. Because man is rational,
he is under a natural obligation to protect himself and to live peacefully
within society. A peaceful, ordered society demands human laws, fashioned for
the direction of social behavior. These human laws will arise from man’s
rational capacity to discern correct patterns of ‘good conduct’. The rules underlying
human laws will derive from a moral system which ought to be taken into account
by all mankind – a sort of ‘natural law’.

Law must be thought of, according to Aquinas, as linked essentially
with reason. A law may be considered as a ‘rule’ and also as ‘a measure’ of the
nature of human activities. He reminds us that the word lex is derived from ligate (to bind) and that law ‘binds us’ to act in particular ways. The rules
and measures of human acts are to be thought of in terms of law and also in
terms

of our reason. Reason directs us to the fulfillment of ‘our ends’
(an Aristotelian concept). Man’s laws should go hand in hand with reason.
Indeed, man’s laws may be thought of as ‘ordinances of reason for the common
good, made by those who have care of the community, and are promulgated’. The
natural law is ‘promulgated’ by the very fact that God has instilled it into
man’s mind so that it can be known ‘naturally’. The natural law is the product
of God’s wisdom. We can better comprehend that wisdom by studying human nature
and the natural law. Theology and philosophy together will help in this quest
for comprehension of the truth. Aquinas is suggesting that a synthetic approach
to a study of the law, in which Christian dogma and Aristotelian philosophy
will assist, will produce a clear understanding of the nature and power of
God’s law.

A fourfold division of law is put forward by Aquinas. The first type
of law is lex eterna – ‘eternal law’; all laws, in so far as they participate
in ‘right reason’, are derived from the eternal law. This is the Divine
Intellect and Will of God directing all things. God’s rational guidance is not
subject to constraints of time – it is eternal. Not to know eternal law – God’s
plan for his creatures – is to be without direction, so that one’s true ends
can never be achieved; but awareness of the eternal law is imprinted on us. God
alone knows the eternal law in its totality, but those few ‘blessed persons’
who have been able to know God in His essence may perceive its truth.

‘Divine law’ – lex divina – is the eternal law governing man and may
be known by him through direct revelation, as in the Scriptures, for example,
The Ten Commandments. Man requires a type of law that can direct him to his
end, namely, eternal happiness; such law contains no errors, and forbids all
sins, allowing no evil to go unpunished. Aristotle had argued that man had a
natural purpose and an end, so that natural law, known through human reason,
could provide an adequate guide. Aquinas distances himself from Aristotle at
this point. Because man’s eternal happiness is related to God’s plans, man
needs direction from God’s law, in addition to human law and natural law. Natural
law comes from man’s rational knowledge of ‘the good’, but that knowledge is,
by its nature, limited. Divine law comes, through revelation, directly from
God. Revelation is the guide for man’s reason, allowing his highest nature to
be perfected by Divine grace. Here is an interesting example of Aquinas giving
a ‘Christian gloss’ to the views of the ‘pagan Greeks’ and achieving an
imaginative synthesis.

The third type of law is ‘natural law’ – lex naturalis, which is man’s
participation in the eternal cosmic law, as it is known through reason. Because
of man’s possession of God-given reason, he may enjoy a share in Divine reason
itself and may derive from it ‘a natural inclination to such actions and ends
as are fitting’, such as the search for good and the avoidance of evil. Where
man exercises his reason correctly he will understand the fundamental principles
of God’s plan. Basic principles for human guidance will emerge, such as that
‘good’ (‘that which all things seek after’) is to be done and evil is to be
shunned. But because of bad customs and habits, some humans will ignore the
natural laws; the result is a division of their energies from those tasks of a
life-fulfilling kind.

The fourth type of law is ‘human law’ – lex humana, involving the
particular application of the natural law and resulting in legislation by
governments. Just as men draw conclusions in the various sciences from
naturally known, but indemonstrable, principles, so, declares Aquinas, human
beings must draw from the precepts of the natural law answers to problems which
emerge when they live together in society. Where human law conforms to the law
of reason, it conforms to the law of God and advances human development.

A significant aspect of Aquinas’ concept of human law, which has
overtones of relevance for the present day, is the relationship he perceives
between human law and its moral dimensions. He repudiates the thesis that a law
is a law merely because it has been decreed by a sovereign. He suggests that a
rule takes on the character of ‘a law’ only where it has appropriate moral dimensions.
Certain questions must be asked: does the rule exist in conformity to the
precepts of the natural law, and does it suggest agreement with the basis of
the moral law? ‘That which is not just seems no law at all’, he declares. Where
a human law diverges from the law of nature, it is no longer a law, but a mere perversion
of the law. Such a law cannot bind in conscience. This is not to say, however,
that it must not, therefore, be obeyed; obedience to it might be essential so
as to prevent an even greater evil, such as the spread of lawlessness, scandal
or great harm.

Aquinas takes a further step forward. Laws which are opposed to
the Divine plan, such as the laws of tyrants inducing to ‘idolatry’, must not
be observed: our duty is to obey God rather than man. A law which is a
violation of the natural law should not, in general, be obeyed.

There are many jurists, inside and outside the Catholic Church, who
see Aquinas as a divinely-inspired genius, able to synthesis a variety of approaches
and capable of bringing system into an unwieldy group of theories. In moving
beyond his predecessors and contemporaries, he was able to produce a unified
set of principles in relation to the law. Natural law is envisaged as a source
of general principles rather than detailed jurisprudential rules. Above all,
perhaps, is the elevation of human reason in the service of comprehension of
the law. God’s law is the ‘reason of Divine wisdom’; Christianity is reason;
human institutions, including those related to law, required the exercise of
reason if they are to be built in enduring fashion. The Thomist view of law is,
fundamentally, that of Cicero, writing in De Republica (52 BC): ‘... true law
is right reason in agreement with Nature ... God is the author of this law, its
promulgator and its enforcing judge.’ In essence: ‘The proper effect of the law
is to make men good ... it should lead men to theirproper virtue.

Notes:

The theory of law
expounded by Aquinas is discussed in Lloyd, Chapter 3; Harris, Chapter 2;
Riddall, Chapter 5; and Davies and Hold croft, Chapter 6. A classic account of
the work of Aquinas is given by D’Arcy in Thomas Aquinas. Gilson’s The
Philosophy of Aquinas gives the setting of Aquinas’ legal thought. Bloch
relates the theory of Aquinas to contemporary problems in ‘The relative natural
law of Aquinas’ in his book, Natural Law and Human Dignity. Lisska’s Aquinas’ Theory
of Natural Law contains an account of the principles of the Summa.